Oregon NPDES Permit (14-OR-b)
As authorized by the United States Environmental Protection Agency (EPA) under the Clean Water Act, the National Pollutant Discharge Elimination System (NPDES) permit program controls water pollution by regulating point sources that discharge pollutants into waters of the United States. Point sources are discrete conveyances such as pipes or man-made ditches. Individual homes that are connected to a municipal system, use a septic system, or do not have a surface discharge do not need an NPDES permit; however, industrial, municipal, and other facilities must obtain permits if their discharges go directly to surface waters. Stormwater discharge permits are required for certain activities by EPA regulations at 40 CFR § 122.26(b)(14). In compliance with this regulation, the Oregon Department of Environmental Quality (ODEQ) issues NPDES permits in accordance with EPA regulations pursuant to OAR 340-045.
The ODEQ provides links to the necessary forms and other useful information on its website.
Waters of the United States
The definition of waters of the United States is applicable to the NPDES permit process through 40 C.F.R. § 122.2. Waters of the United States for purposes of the Clean Water Act, 33 USC 1251 et. seq. and its implementing regulations is defined in 40 CFR 230.3(o), establishing the jurisdictional waters under the Act. The definition of waters of the United States includes all waters which are currently used, were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; and the territorial seas; as well as all tributaries to such waters.
The definition of waters of the United States extends to certain waters associated with jurisdictional waters (see 40 CFR 230.3(o)(1)(iv) through (vii). The definition includes all impoundments of jurisdictional waters. The definition includes waters adjacent to jurisdictional waters within a minimum of 100 feet and within the 100-year floodplain to a maximum of 1,500 feet of the ordinary high water mark. The definition also includes waters with a significant nexus to jurisdictional waters including, Prairie potholes, Carolina & Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands; and those waters within the 100-year floodplain of a traditional navigable water, interstate water, or the territorial sea, as well as waters within 4,000 feet of jurisdictional waters.
The waters of the United States do not include numerous sources of water even where they otherwise meet the terms of 40 CFR 230.3(o)(1)(iv) through (vii). Generally not included are waters associated with waste treatment systems, prior converted cropland, ditches, numerous types of artificial features, groundwater, stormwater control features, and structures related to wastewater recycling (for a detailed description see 40 CFR 230.3(o)(2)).
"Waters of the United States" is defined broadly by regulation under the Clean Water Rule as developed by the EPA and USACE. The effective date for this new rule is August 28, 2015. The new rule modifies the regulatory definition to more precisely define jurisdictional waters under the CWA. In most states the rule took effect immediately, however, a number of states have initiated litigation to challenge implementation of the new rule.
On August 27, 2015, the District Court of North Dakota issued a preliminary injunction halting the implementation of the new rule (see North Dakota, et al. v. EPA, Memorandum Opinion and Order Granting Plaintiffs' Motion for Preliminary Injunction). In light of the order, EPA and USACE will continue to implement the CWA through the prior regulatory definition under 40 CFR 230.3(s) in the following States: Alaska, Arizona, Arkansas, Colorado, Idaho, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, South Dakota, and Wyoming.
On October 9, 2015, the U.S. Court of Appeals for the Sixth Circuit issued a stay halting implementation of the new rule nationwide pending its own determination of its own exclusive jurisdiction to review the rule (see Ohio, et al. v. EPA, Order of Stay). If the court determines it has exclusive jurisdiction the stay will likely remain in place pending a determination on the merits of the case. The court anticipates it will make a jurisdictional determination within a few weeks of the date of its order to stay. Given this uncertainty, developers should anticipate continued litigation on this matter and continue to monitor the issue at the state and national level. The EPA provides information on the ongoing effort to implement the EPA Clean Water Rule Website.</div>
NPDES Permit Process
14-OR-b.1 to 14-OR-b.2 – Does the Activity Qualify Under a General NPDES Permit?
Certain activities may qualify under a valid General NPDES permit. Developers should consult the NPDES website to determine if a General Permit covers the activity and must comply with ODEQ procedures and submit any necessary forms. If the discharge activity is not covered under a valid General Permit, the developer will need to apply for an Individual NPDES Permit.
14-OR-b.3 – Individual NPDES Permit Application
14-OR-b.4 - Review Application Materials
The Oregon Department of Environmental Quality reviews the application for completeness and technical adequacy.
14-OR-b.5 - Does the Project Require Public Notice Under OAR 340-045-0027
Public Notice and Participation Requirements For Permitting Actions
The Oregon Department of Environmental Quality categorizes permitting actions according to environmental and public health significance. Category I represents permit actions with low environmental and public health significance and no public notice and opportunity for public participation. Category IV represents permit actions with potentially high environmental and public health significance, and the greatest level of public notice and opportunity for public participation. The following describes the public notice and participation requirements for each category:
- Category I -- No public notice or opportunity for public participation.
- Category II -- The Oregon Department of Environmental Quality will provide public notice of the proposed action and a minimum of 30 days to submit written comments.
- Category III -- The Oregon Department of Environmental Quality will provide public notice of the proposed action and a minimum of 35 days to submit written comments. The Department will provide a minimum of 30 days notice for a hearing if one is scheduled. The Department will schedule a public hearing to allow interested parties to submit oral or written comments if:
- Specifically for NPDES permits, the Department receives written requests for public hearing during the public comment period from at least ten persons or from an organization or organizations representing at least ten persons.
- The Department determines that a hearing is necessary.
- Category IV - Once an application is complete, the Oregon Department of Environmental Quality will provide public notice of the receipt of a completed application and requested permitting action. Thereafter, the Department will schedule an informational meeting in the community where the facility will be or is located and provide public notice of the meeting. The Department will consider any information gathered in this process in its drafting of the proposed permit. After the Department completes a Draft Permit, the Department will provide public notice of the proposed permit and a minimum of 40 days to submit written comments. The Department will also schedule a public hearing to allow interested parties to submit oral or written comments and provide a minimum notice of 30 days for the hearing.
OAR 340-045-0027 classifies the following activities in Categories I – IV.
- Category I includes:
- Minor modification of an NPDES or a WPCF permit and
- NPDES or WPCF permit administrative actions that include but are not limited to: transfer of a permit to a new owner or operator, termination or revocation of a permit, denial of a permit, and withdrawal of an application.
- Category II includes:
- Mutual agreement and order in lieu of an NPDES permit unless delay in issuing order may magnify problem (see OAR 340-045-0062(4)).
- Category III includes:
- Issuance of a new or renewal NPDES individual permit unless otherwise specified in this rule;
- Major modification of an NPDES permit unless otherwise specified in this rule; and
- Issuance of a new or renewal WPCF or NPDES general permit.
- All other actions not elsewhere classified.
- Category IV includes:
- Issuance of a new NPDES individual permit for a major facility, as classified by the Department;
- Issuance of a renewal NPDES individual permit for a major facility, as classified by the Department, when there is a new or increased discharged load;
- Major modification of an NPDES individual permit for a major facility, as classified by the Department, when there is a new or increased discharged load.
Additionally, the Oregon Department of Environmental Quality may move a permit action to a higher category based on, but not limited to, the following factors:
- Anticipated public interest in the facility;
- Compliance and enforcement history of the facility or owner;
- Potential for significant environmental or public harm due to location or type of facility, or
- Federal requirements.
When the Oregon Department of Environmental Quality issues a public notice, the notice must include:
- The name and address of the permittee and permit applicant and, if different, facility location;
- The type of facility including a description of the facility's process subject to the permit;
- A description of the proposed permitting action (i.e., new permit, renewal permit, or permit modification);
- The description of the permitted substances stored, disposed of, discharged, or emitted, including whether there has been an increase or decrease in the substance since the last permit action for the facility;
- The location and description of documents relied upon in preparing the draft permit action;
- Other permits required by the Department;
- The date of the previous permit action if a renewal or modification;
- An opportunity for public comment whether in writing or in person if required;
- Compliance, enforcement and complaint history, along with their respective resolutions; and
- A summary of what discretionary decisions were made by the Department in drafting the permit.
14-OR-b.6 - Public Hearing (as required)
Depending on the complexity of the permit, a hearing may be required.
14-OR-b.7 - Does DEQ Decide to Approve the Permit Under OAR 340-045-0035
Under OAR 340-045-0035, the Oregon Department of Environmental Quality will formulate and prepare a tentative determination to issue or deny an NPDES permit from the discharge described in the application. If the tentative determination is to issue an NPDES permit, then the Department will issue a proposed NPDES permit that includes at least the following:
- Proposed effluent limitations;
- Proposed biosolids limitations;
- Appropriate monitoring requirements;
- Proposed schedule of compliance, if necessary; established in conformance with the Federal Act and regulations issued pursuant thereto; and
- Other special conditions.
The Oregon Department of Environmental Quality issues a public notice In order to inform potentially interested persons of the proposed discharge and of the tentative determination to issue an NPDES permit. The public notice will contain:
- A description (when available) of the water quality of the receiving water body both upstream and downstream;
- If the waterbody is water quality limited under Section 303(d)(1) of the Clean Water Act, a description of whether the permit relates to the parameter(s) that is water quality limited and if so, how the permit will fit within the existing Total Maximum Daily Load (TMDL) or if no TMDL exists, how it is acceptable; and
- A description of any load increase proposed and action required for its approval.
A fact sheet will be prepared for each draft NPDES permit for a major facility and for each NPDES general permit. In addition, a fact sheet will be prepared for every industrial NPDES permit that incorporates a variance and for every draft permit that the Director finds is the subject of widespread public interest or raises major issues. The fact sheet will briefly describe the principle facts and the significant factual, legal, methodological, and policy questions considered in preparing the draft permit. Fact sheets will contain the following, where applicable:
- A brief description of the type of facility or activity;
- The type and quantity of wastes to be discharged;
- Applicable standards and guidelines used as a basis for effluent and biosolids limits;
- An explanation of any proposed variances;
- A sketch, map, or detailed location of the discharge, where appropriate;
- Information spelling out procedures for finalizing the permit and providing additional public input, including opportunity for public hearing; and
- Where appropriate, an assessment of future control needs based on the adequacy of present controls, records of compliance, applicable rules and regulations;
- A statement of the inclusion of a biosolids management and land application plan, if appropriate; and
- The Name and telephone number of a person to contact for additional information.
After the Oregon Department of Environmental Quality drafts the public notice and the proposed NPDES permit provisions, the Department will forward the documents to the applicant for review and comment. These comments must be submitted in writing within 14 days after mailing of the proposed materials if the comments are to receive consideration prior to final action on the application, unless the applicant requests additional time. The applicant may also waive his right for the 14-day review time in the interest of accelerating the issuance procedures. At the conclusion of the public involvement period, the Director of the Oregon Department of Environmental Quality will make a final determination on the application as soon as practicable and promptly notify the applicant in writing of the final determination. For all permits that receive comments on proposed permit requirements during the public comment period, a response to comments will be issued that specifies any changed provisions in the permit, and the reasons for the changes, and that describes and responds to all significant comments. This response to comments will be made available to the public on request. Any NPDES permit issued will contain such pertinent and particular conditions as may be required to comply with the Federal Act or regulations. Pursuant to federal regulation, an NPDES permit will be effective for a fixed term not to exceed five years. If the Director determines that the NPDES permit should be denied, the Department will include in the notification the reasons for the denial. If conditions of the NPDES permit issued are different from the proposed provisions forwarded to the applicant for review, the notification shall include the reasons for the changes made. A copy of the NPDES permit issued shall be attached to the notification.
Before the Director of the Oregon Department of Environmental Quality will issue an NPDES permit that applies effluent limitations in accordance with effluent guidelines rather than water quality standards, the Director will make a determination that the permitted discharge will not violate applicable water quality standards and will provide some justification for that determination. Such justification will include, but not necessarily be limited to:
- A description of the anticipated effect on water quality at the mixing zone boundary of the chemical and/or physical parameter(s) upon which the size and shape of the mixing zone are based and
- A statement of anticipated effect of the discharge on aquatic life.
14-OR-b.8 - Notification of Denial
The Oregon Department of Environmental Quality will notify the applicant in writing if the permit has been denied. The notification will have details on the appeals process.
14-OR-b.9 - Does the applicant request a hearing within 20 days?
The applicant may challenge the denial of the permit within 20 days of the denial. If the denial is challenged, a contested hearing must be held.
14-OR-b.10 - Conduct contested case hearing
The Oregon Department of Environmental Quality is required to arrange for the contested hearing and notify the parties of the time and place of the hearing.
14-OR-b.11 to 14-OR-b.12 - Is the permit awarded
If the permit is awarded, the permit will be forwarded to the applicant. The permit may contain additional terms and conditions deemed necessary to protect the environment.
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